TC Minutes 01-08-1991•
MINUTES OF THE REGULAR MEETING OF THE
TOWN COUNCIL HELD JANUARY 8, 1991 -
7:30 P.M.
The regular meeting of the Avon Town Council of the Town of
Avon, Colorado, was held in the Municipal Building, 400
Benchmark Road, Avon, Colorado, in the Council Chambers.
The meeting was called to order by Mayor Jerry Davis at 7:34,P.m.
A roll was taken with David Garton, Albert Reynolds, Mike
Bennett, Gloria McRory, Jim Stovall and Tom Ptach present. Also
present were Town Attorney John Dunn, Town Manager Bill James,
Director of Engineering Norm Wood, Director of Municipal Services
Larry Brooks, Director of Community Development Rick Pylman, Police
Chief Art Dalton, Town Clerk Patricia J. Doyle, as well as, members
of the press and public.
The Mayor called for Citizen Input.
There being no one wishing to be heard, the Mayor closed that portion
of the discussion.
Resolution No. 91-1, Series of 1991, A RESOLUTION OF THE TOWN OF
AVON, COLORADO, AMENDING PENSION ARRANGEMENTS WITH PENSION MANAGEMENT
ASSOCIATES AND ADOPTING PENSION PLANS FOR THE FIRE DEPARTMENT OF THE
TOWN OF AVON.
Bill James stated that back in October of 1990, the Council passed
a resolution in respect to changing the Fire Pension Plan. He
stated that, at that time, the Council also passed a resolution
for the Police Department and the general employees. The Fire
Department requested additional time to review the documents. He
stated that this was the same plan, the only issue now was to make
the effective date January 1, 1991 instead of October 1, 1990.
Councilman Garton moved approval of Resolution No. 91-1, Series of
1991. The motion was seconded by Councilman Reynolds and was
unanimously carried.
Resolution No. 91-2, Series of 1991, A RESOLUTION SUMMARIZING THE
EXPENDITURES AND REVENUES FOR EACH FUND AND AMENDING THE 1990
BUDGET FOR THE TOWN OF AVON, COLORADO, FOR THE CALENDAR YEAR
BEGINNING ON THE FIRST DAY OF JANUARY, 1990, AND ENDING ON THE LAST
DAY OF DECEMBER, 1990.
Bill James stated that Van Schooneveld and Company had completed their
preliminary work on the 1990 Audit in December. As part of this
work they reviewed entries made for both of the bond issues (Wildridge
Special Assessments and Railroad Improvement/refunding bonds). As
a result of this,Audit, they had made several adjustments to the
general, public works, debt service and Wildridge Special Assessments
Funds. He stated that this resolution makes those adjustments.
Councilman Reynolds moved approval of Resolution No. 91-2, Series
of 1991. The motion was seconded by Councilwoman McRory and was
unanimously carried.
Next on the agenda was discussion of the Intergovernmental Agreement
between Town of Avon and Eagle County in respect to Animal Control.
As per this Agreement the County would provide animal control services
for Avon. The services would include:
a. Two randomly scheduled patrols of the Town each day for 5 days
of the week.
b. 24 hour a day on-call emergency service.
c. Administration and enforcement of Eagle County Animal Control
Resolution No. 90-48 presently in effect may be subsequently amended.
d. Cost of service $360.15 per month or $4,321.80 per year.
e. County has agreed to cite violations into Avon Municipal Cort.
Our local ordinance may need some modification to meet County
guidelines, which would be done at the next meeting.
Discussion followed on the definition of "Control".
Both Councilmen Stovall and Ptach had concern of the definition of
control, which was strictly leash control.
Councilman Ptach stated that a dog could be under voice control very
easily.
Councilman Stovall stated that he would like to have staff look into
some changes in the ordinance/resolution, such as voice control, or
limited times in the park that dogs could be without leash control,
but attended by owner.
The Mayor stated that laws were made not for people that were not
offenders, but for people that were offenders.
Councilman Ptach stated he would like to see a less stringent enforcement.
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Further discussion followed.
John Dunn stated that if Avon amended its ordinance then there would
be an overlap of jurisdiction between the courts.
Councilman Garton moved approval of the Intergovernmental Agreement
between the Town of Avon and Eagle County in respect to Animal
Control. The motion died due to a lack of a second.
Councilman Ptach requested that the attorney converse with the County
on this "Control" issue, to direct the Town Attorney to look at the
Town's ordinance and come back to Council at the next meeting.
The Town Manager had received a letter from Conrad Parra, American
Government Teacher of Battle Mountain High School requesting donation
to send a student to Washington, D.C. in respect to their Close-
Up Program. This program reflects the belief that a close-up look
at our government encourages students to formulate their own ideas and
opinions. The total cost for each student for the week's program
including travel, room and board, is $965.00. Each student has
paid an initial deposit of $50.00, leaving a balance of $915.00.
Mr. Parra was requesting a contribution from the Town of $915.00.
Councilman Reynolds moved approval of the expenditure of $915.00 to
send a student (Shannon Loomis) to Washington, D.C. in regard to the
Close-Up Program. The motion was seconded by Councilman Ptach and
was unanimously carried.
The students would leave either March 30th or April 1st, of this year.
It was requested that when Ms. Loomis returns that she come before the
Council for a presentation of her trip.
The Town Attorney report was next on the agenda.
Mr. Dunn reported on the Bain Case. He stated that the Court of
Appeals reversed Judge Jones decision of the Bain Case. The Court
of Appeals ruled that Judge Jones needed to make determination on
whether the work was taking place on land owned by Doyle.
The other issue was in respect to residency requirements of three
of the Councilmembers. Mr. Dunn provided the Council with a
memorandum which was prepared by Larry Hartlaub and Mr. Dunn, which
dealt with the requirements of councilmembers to remain in residency
of the Town while in office. Mr. Dunn reviewed the memorandum with
the Council (See attached to these minutes). He stated that two
principle provisions were certain circumstances which could be taken
into consideration in determining primary place of residency. Those
certain circumstances could be, business, employment, income sources,
residence as reported on tax returns, location of real property and
motor vehicle registration. He stated that the third provision was the
definition of "Residence". A person who leaves his home for a different
county just temporary with the intention of returning.to the Town where
they are in office as a Councilmember.
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The three Councilmembers responded to the Mayor's question of
whether they were residents-of the Town of Avon
Councilwoman McRory stated that she was not a resident at this time.
She stated that this.was just a temporary move and that she intended.
-to move back into Avon as soon as the home sold. She had no idea
how long that would be. She stated that she had a business in Avon,
and that she spent more time at the business than she did at the
residence.
Councilman Bennett stated that he believed hi was a resident of Avon.
=Councilman.Garton stated that he was a resident of Avon.
Mayor Davis stated that question was how long a period of. time goes
by, that you'are not a resident, and still can comply to function
as a Counclmember.-
Councilwoman McRory that she could not answer that question..
Mayor Davis stated that this was a concern that Council had to come
to grips with.
There being to further discussion or input, the Mayor closed that
portion of the meeting.
No action was taken.
The Mayor report was next on the agenda.
Mayor Davis stated that there was a work shop scheduled for the
newly elected Councilmembers on January 12, 1991.
Also the Colorado Municipal League was having their Legislative
Work Shop on January,31; 1991 in Denver..•,Councilmembers were invited
to attend.
Mayor Davis stated that he had received a letter from the'Town of
Redcliff in respect to the Television Translator Licenses that the
Town-of Avon owned. Redcliff was requesting that'Avon release-those
'five licenses to them so.-they could use•them:for expansion and.
improvement of their television system.
Councilman Bennett so moved. The motion was'seconded by Councilman
Garton and was unanimously-carried.
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Mayor Davis stated that he had received a letter from Pat Conran,
Superintendent of Schools, in respect to the Town of Avon drafting
an ordinance for an annexation process for land for future schools.
He asked that staff look at the drafted sample proposed ordinance
to see if Avon would be interested in an ordinance for the above.
Bill James reviewed a letter from Jim Collins in respect to Edwards
Fire Station Site Access to Highway 6 and 24. He stated that the
Ambulance District had purchased the property adjacent to the Edwards
Fire Station. He stated that the ambulance building would be located
in Edwards instead of Avon because they were unsuccessful of finding
land in Avon.
The Financial Matters were next presented to the Council.
Councilwoman McRory moved to receive items #1 through #15. The
motion was seconded by Councilman Stovall and was unanimously carried.
Councilwoman McRory moved approval of the General Fund of Accounts
Payable for January 8, 1991. The motion was seconded by Councilman
Stovall and was unanimously carried.
Councilwoman McRory moved approval of the Reconciliation Sheet of
Accounts Payable for January 8, 1991. The motion was seconded by
Councilman Stovall and was unanimously carried.
Councilwoman McRory moved approval of the December 11, 1990 Council
Meeting Minutes as presented. The motion was seconded by Councilman
Ptach and was unanimously carried.
Under other business:
Councilwoman McRory commended the Avon Fire Department for their
response of a Fire Alarm at the Charter. She stated that the Manager
of the Charter appreciated the way the fire department diverted water
out from the building, which saved them a large amount of money.
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It was the consensus of the Council that Bill James attend a meeting
on Friday with the Grand-on-Avon.
Bill James reviewed with the Council the idea of the Town of Avon
taking over the Avon Metropolitan District. He asked that the
Council review the figures that were presented to them, and that this
matter come back to the Couneil for additional discussions.
There being no further business to come before the Council, Councilman
Stovall moved to adjourn. The motion was seconded by Councilman
Garton. The meeting was adjourned by Mayor Davis at 8:48 p.m.
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APPRC)A7Rn e
9 •
LAW OFFICES
COSGRIFF, DUNN & ABPLANALP
A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION
PETER COSGRIFF
JOHN W. DUNN
ARTHUR A. ABPLANALP, JR.
TIMOTHY H. BERRY
ALLEN C. CHRISTENSEN
LAWRENCE P. HARTLAUB
VAIL NATIONAL BANK BUILDING
SUITE 300
108 SOUTH FRONTAGE ROAD WEST
VAIL,COLORADO 81657
IN LEADVILLE=
COSGRIFF, DUNN & BERRY
P. O. BOX 11
LEADVILLE, COLORADO 60461
(716) 466-1663
January 8, 1991
MEMOPUMDUM
TELEPHONE: (303) 476-7552
TELECOPIER: (303) 476-4765
To: Avon Town Council
From: John W. Dunn & Larry Hartlaub
Re: Residency requirements for 'Councilmembers
Town of Avon
Issues:
1. After an election, what are the requirements for
councilmembers to maintain residency in the Town?
The Town Charter, at Section 4.7(a) provides that a vacancy
shall occur in an elective office whenever the officer ceases to
be a resident of the Town. This indicates that the vacancy is
automatic, without any resignation of the councilmember or action
of the Council in removing such a member. However, if a question
is presented to the Council about the qualifications of a member,
Section 4.6 (a) provides that the Council shall be the judge of
its members' qualifications.
Section 4.7 (a) provides that an elected official shall
continue to hold his office until his successor is duly
qualified. This would be in conflict with the mandatory vacancy
provisions described above. It is our opinion that the vacancy
would occur even though a successor has not yet been appointed
and qualified. That an elected official continues until his
successor is duly qualified and appointed, assumes that the prior
official would remain qualified to act until his successor is
qualified.
There is no Charter or ordinance provision defining
residency. Thus, we must refer to the Colorado Election Code,
C.R.S., Section 31-10-201. The residence of a person is his or
her principal or primary home or place of abode. Principal or
primary home or place of abode is that home or place in which his
habitation is fixed and to which a person, whenever he is absent,
has the present intention of returning after a departure or
absence, regardless of the duration of the absence. A person does
not lose his residency in Town if he leaves his home and goes
somewhere else merely for temporary purposes with an intention of
returning. The corollary is that a person does lose residency in
Town if he or she moves out of Town with the intent to make the
THE PROFESSIONAL CORPORATION IS DUNN & ABPLANALP, P.C.IN VAIL.
new out-of-town home his or her permanent residence.
"Intent", as mentioned above, can be shown from such matters
as motor vehicle registration, driver's license, location of
owned or leased residential dwelling property, ownership and
location of personal property used for dwelling purposes, mailing
address, and documents that have been filled in by the
councilmember showing an intent to be a resident of the Town.
2. What is the effect on votes made by a councilmember who
lost the residency qualification?
The Charter provision mentioned above, Section 4.7 (a)
indicates that the councilmember automatically and without any
action by the councilmember or the Council, loses his or her
position on the council if residency in the Town is lost. Thus,
the votes made by such a person would be null and void. If any
matter voted on would not pass but for the vote of the
disqualified member, the entire motion is probably likewise null
and void as having failed to pass by the required number of
votes. The same problem is present when using the disqualified
member to make a quorum - it may mean that the Council had no
quorum for a particular meeting and therefore all actions of the
Council at the meeting were void. Naturally, the Council can
later re-enact any such ordinance or otherwise pass again any
defective motions - however, the effective date (other than
ratifying an action previously authorized by the void ordinance
or motion) could not relate back to the earlier void ordinance or
motion.
3. Who can raise the question of continued residency for a
council member?
Each councilmember must be aware that just as he or she was
required to be a registered elector of the Town in order to be
elected (and hence a resident of the Town), so too must the
person continue to maintain the residency. Thus, a concilmember
who has a question of continued qualification for herself or
himself, or for any other councilmember, should raise the
question to the Mayor. As mentioned above, the Council is the
judge on determination of qualifications (as long as the decision
is not arbitrary or capricious and is supported by some credible
evidence).